IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Gary Allen Duffy, :

 Plaintiff, :

 v. : Case No. 2:12-cv-57

Michael J. Astrue, : JUDGE GEORGE C. SMITH

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. : 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Gary Allen Duffy, filed this action seeking

review of a decision of the Commissioner of Social Security

denying his application for social security disability benefits

and granting his application for supplemental security income. 

Those applications were filed with protective filing dates of

July 14, 2008 and August 25, 2008, respectively, and alleged that

plaintiff became disabled on January 2, 2001. 

After initial administrative denials of his applications,

plaintiff was given a video hearing before an Administrative Law

Judge on March 12, 2010. In a decision dated June 23, 2010, the

ALJ found that plaintiff was disabled and entitled to benefits

only from August 25, 2008 forward. That became the

Commissioner’s final decision on November 23, 2011, when the

Appeals Council denied review.

After plaintiff filed this case, the Commissioner filed the

administrative record on March 26, 2012. Plaintiff filed his

statement of specific errors on April 24, 2012. The Commissioner

filed a response on May 31, 2012. Plaintiff filed a reply brief

on June 18, 2012, and the case is now ready to decide.

II. Plaintiff’s Testimony at the Administrative Hearing

 

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Plaintiff, who was 58 years old at the time of the

administrative hearing and who has a college education, testified

as follows. 

 Plaintiff served for three years in the military in the

early 1970s. He last worked in 2000. At that he was managing

several businesses but, due to what was ultimately diagnosed as

bipolar disorder, became unable to function. He was diagnosed in

2003 after having been admitted to a VA hospital in Nevada. 

After about a year of relatively unsuccessful treatment he moved

back to Ohio. Shortly thereafter, he was diagnosed with

Hepatitis C. He also developed migraine headaches at that time. 

He has tried a number of different medications for bipolar

disorder but has had many side effects, and that condition has

gotten worse. 

 Currently plaintiff lives with his father. He is able to do

some household chores occasionally but described his father as

his "caretaker." In a typical week, he wakes up with a headache

every day. He may accompany his father shopping but does not go

into the stores due to not wanting to be around people. He will

watch television or use the internet at times, but often does not

leave his room and may not bathe for several days in a row. He

did break his foot about a year before the hearing and was still

having some problems going up and down steps.

In response to questioning from his attorney, plaintiff

stated that he no longer has manic episodes but is depressed all

the time. He also said that he suffers from nausea and vomiting

every day and has done so since his 2003 hospitalization.

III. The Medical Records

The medical records in this case are found beginning on page

269 of the administrative record. Because plaintiff’s

assignments of error relate exclusively to his psychological

impairment and his Hepatitis C, and to the question of whether

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either of both of those impairments should have been found to be

severe, the Court will discuss only those records which relate to

that issue, and will do so in the context of analyzing his

statement of errors in Section VI below.

 IV. The Vocational Testimony

A vocational expert, Ms. Posey, also testified at the

administrative hearing. She characterized plaintiff’s past work

as a computer systems manager analyst and stated that it was

skilled work requiring frequent reaching and handling, occasional

fingering, and frequent interaction with people. This job is

classified by the DOT as sedentary but plaintiff performed it at

the light exertional level. The skills which plaintiff acquired

would transfef to the job of computer processing scheduler. 

Ms. Posey was asked to assume that plaintiff could work at

the medium exertional level and that his work would be limited to

simple, routine and repetitive tasks performed in a low stress

environment with only occasional decision-making or changes in

the work setting, reduced production quotas, and only occasional

superficial interaction with coworkers and the public. With

those limitations, plaintiff could not perform any of his past

work, but a person with those limitations could perform such jobs

as laundry worker, car cleaner, groundskeeper or vehicle washer.

If plaintiff were as limited as he testified due to bipolar

disorder and migraine headaches, however, he could not work.

V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 25

through 36 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured requirements of the Social Security Act for

purposes of disability benefits through December 31, 2005. Next,

she found that plaintiff had not engaged in substantial gainful

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activity from his alleged onset date of January 2, 2001, through

the date of the decision. As far as plaintiff’s impairments are

concerned, the ALJ found that between the onset date and December

31, 2005, plaintiff suffered from only a single severe

impairment, namely obesity. Both his Hepatitis C and his bipolar

disorder were found to be nonsevere. As of August 25, 2008, the

date that plaintiff filed his application for supplemental

security income, the ALJ found that plaintiff suffered from

obesity, cirrhosis of the liver, chronic Hepatitis C, migraine

headaches, and bipolar disorder, all of which were severe, and a

nonsevere left foot fracture. The ALJ also found that these

impairments did not, at any time, meet or equal the requirements

of any section of the Listing of Impairments (20 C.F.R. Part 404,

Subpart P, Appendix 1).

Moving to the next step of the sequential evaluation

process, the ALJ found that while insured, plaintiff had the

residual functional capacity to perform a full range of work at

the medium exertional level. Beginning on August 25, 2008,

however, he had the added restrictions described to the

vocational expert, and also could not work a full eight-hour work

day on a consistent basis due to migraine headaches and bipolar

cycling. Based on these findings, plaintiff could do his past

relevant work during the entire time he was insured, but could do

no work from August 25, 2008 forward. As a result, the ALJ

concluded that plaintiff had demonstrated an entitlement only to 

supplemental security income benefits beginning on that date.

VI. Plaintiff’s Statement of Specific Errors

 In his statement of specific errors, plaintiff raises a

single issue. He argues that the ALJ failed to follow the

“slight abnormality” standard when the ALJ determined that, prior

to August 25, 2008, his bipolar disorder was not a “severe

impairment.” The Court generally reviews the administrative

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decision of a Social Security ALJ under this legal standard:

Standard of Review. Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

Commissioner] as to any fact, if supported by substantial

evidence, shall be conclusive. . . ." Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion'" Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.

NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere

scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

Cir. 1976). The Commissioner's findings of fact must be based

upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.

1984). In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into

account whatever in the record fairly detracts from its weight.'" 

Beavers v. Secretary of Health, Education and Welfare, 577 F.2d

383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human

Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

In support of his statement of error, plaintiff focuses on

evidence that his bipolar disorder was diagnosed as early as his

May, 2003 hospitalization, and that various symptoms stemming

from that disorder were noted in the hospital records, including

lethargy, dysphoria, and a flat affect. After his release,

records show additional treatment for rapid mood cycling,

including treatment with medications. He also points to his

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testimony that he had to stop working at the end of 2000 due to

psychologically-based symptoms. Finally, he argues that he had

also been diagnosed with Hepatitis C, which affected his liver

function and his ability to tolerate medications for his bipolar

disorder, and that even if his bipolar disorder and Hepatitis C

were not severe impairments, their impact on his functioning

should still have been assessed in combination with his severe

impairment (obesity). 

In response, the Commissioner notes that plaintiff has not

pointed out any limitations imposed by his bipolar disorder which

the ALJ did not take into account in determining his residual

functional capacity. The Commissioner also recites evidence that

plaintiff was generally not symptomatic before December, 2005,

that a state agency reviewer found his bipolar disorder prior to

that date not to be severe, and that the ALJ discounted some of

plaintiff’s testimony as not fully credible, a finding which

plaintiff does not challenge. Additionally, there is no medical

evidence to contradict the state agency reviewer’s finding. On

these bases, the Commissioner asserts that the ALJ’s decision

should be upheld. In reply, plaintiff notes only that the ALJ

appears not to have taken into account any limitations posed by

his Hepatitis C and how that disease has made it more difficult

to treat his bipolar disorder. The reply memorandum does not

identify any specific work-related limitations which the ALJ

should have but, in plaintiff’s view, did not impose, however.

The ALJ did note that after plaintiff was treated for

detoxification and a mood disorder in 2003, he continued to have

a mood disturbance. However, his GAF, which was 38 when he was

admitted to the hospital, improved to 65, indicative of only mild

symptoms, upon discharge. After discharge, records did not

indicate any more than mild symptoms. The ALJ also relied on the

report from the state agency reviewer, Dr. Matyi, who found that

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plaintiff did not have a severe mental impairment before December

31, 2005, and to the affirmance of that opinion by Dr. Rudy. The

ALJ noted that “[s]ignificant weight is given to these opinions

as they are consistent with the evidence of record for the period

prior to the claimant’s dated (sic) last insured of December 31,

2005.” (Tr. 31). 

Under social security law, a severe impairment or

combination of impairments is one which significantly limits the

physical or mental ability to perform basic work activities. 20

C.F.R. §404.1520(c). Basic work activities relate to the

abilities and aptitudes necessary to perform most jobs, such as

the ability to perform physical functions, the capacity for

seeing and hearing, and the ability to use judgment, respond to

supervisors, and deal with changes in the work setting. 20

C.F.R. §404.152l(b). The question of severity is not related to

the plaintiff's age, education, or work experience. A nonsevere

impairment is one which would not be expected to interfere with a

Plaintiff's ability to work regardless of “whether the claimant

was sixty-years old or only twenty-five, whether the claimant had

a sixth grade education or a master's degree, whether the

claimant was a brain surgeon, a factory worker, or a secretary.” 

Salmi v. Secretary of H.H.S., 774 F.2d 685, 691-92 (6th Cir.

1985).

 Plaintiff is not required to establish total disability

at this level of the evaluation. Rather, the severe

impairment requirement is a threshold element which plaintiff

must prove in order to establish disability within the

meaning of the Act. Gist v. Secretary of H.H.S., 736 F.2d

352, 357 (6th Cir. 1984); see also Social Security Ruling 86-8

(identifying the question of whether the claimant has a severe

impairment as the second step of the sequential evaluation

process). An impairment will be considered nonsevere only if it

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is a "slight abnormality which has such a minimal effect on the

individual that it would not be expected to interfere with the

individual's ability to work, irrespective of age, education and

work experience." Farris v. Secretary of H.H.S., 773 F.2d 85, 90

(6th Cir. 1985), citing Brady v. Heckler, 724 F.2d 914, 920 (11th

Cir. 1984). The Commissioner's decision on this issue must be

supported by substantial evidence. Mowery v. Heckler, 771 F.2d

966 (6th Cir. 1985). The severe impairment test has been upheld

as a permissible interpretation of the Act. Bowen v. Yuckert,

482 U.S. 137 (1987). However, both that decision and applicable

rulings indicate that it is not to be used routinely to deny

benefits. Its use is restricted to those claimants with "slight

abnormalities that do not significantly limit any 'basic work

activity....'" Bowen v. Yukert, supra, at 158 (O'Connor, J.,

concurring). "Great care" must be used in applying the concept,

and any doubt should be resolved in favor of continuing the

sequential evaluation process so that vocational factors are

taken into account. See Social Security Ruling 85-28.

Here, the Court agrees with the Commissioner that the ALJ

had a substantial basis for finding that plaintiff’s bipolar

disorder (or depressive disorder) was not “severe” prior to

December 31, 2005. First, no treating or examining source

identified anything more than mild symptoms. The May, 2003

hospitalization was occasioned not by psychologically-based

symptoms but by substance abuse. The ALJ correctly described the

treatment records as indicating that by the date of discharge,

plaintiff was experiencing only mild symptoms from any of his

disorders. Notes from later in that year described plaintiff as

“comfortable and happy with his medication regime,”, Tr. 332, and

he described himself as “stable” and his mood was “euthymic.” 

Id. Notes from 2004 indicate no significant changes. Dr. Matyi

relied on these records and similar records from 2005 in

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concluding that plaintiff’s condition during the insured period

was “not severe.” (Tr. 1278). And, contrary to plaintiff’s

arguments, there is nothing in any of the progress notes which

seems to indicate that his Hepatitis C was interfering with the

treatment of his psychological disorder. A reasonable person

could have concluded from this record that plaintiff’s bipolar

disorder did not impose any significant limitation of functioning

during this time period, either alone or in combination with his

obesity and Hepatitis C, and that such an impairment was not

severe.

Plaintiff is correct that an ALJ must consider the combined

effect of all impairments of record, both severe and non-severe,

in determining a claimant’s residual functional capacity. See 20

C.F.R. §1545(a)(2)(“We will consider all of your medically

determinable impairments of which we are aware, including your

medically determinable impairments that are not ‘severe’ ... when

we assess your residual functional capacity”). However, the

Commissioner correctly points out that plaintiff’s statement of

errors does not identify what, if any, additional limitations

resulted from his bipolar disorder prior to December 31, 2005. 

Further, it is worth noting that even if plaintiff had all of the

psychological limitations described to the vocational expert

except for the inability to work a full eight-hour day -

limitations such as the ability to perform only simple, routine

and repetitive tasks in a low stress environment with only

occasional decision-making or changes in the work setting,

reduced production quotas, and only occasional superficial

interaction with coworkers and the public - the vocational expert

identified a significant number of jobs which plaintiff could

perform. Thus, to the extent that plaintiff may be arguing that

these additional limitations, which are really not supported by

any evidence of record which predates December 31, 2005, should

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have been imposed, he still would not have qualified for

benefits. Any error, if one was committed, is therefore

harmless. Plaintiff’s statement of errors lacks merit for all of

these reasons.

 VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be overruled and that judgment be

entered in favor of the defendant Commissioner of Social

Security.

VIII. Procedure on Objections

If any party objects to this Report and Recommendation,

that party may, within fourteen (14) days of the date of this

Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which

objection is made, together with supporting authority for the

objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified

proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings

or recommendations made herein, may receive further evidence

or may recommit this matter to the magistrate judge with

instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

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/s/ Terence P. Kemp 

United States Magistrate Judge

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